specially concurring:
This court has long held that we will depart from the doctrine of stare decisis upon a showing of “good cause.” Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 167 (1955). This is true because “[t]he doctrine of stare decisis is a basic tenet of our legal system” which promotes the consistent development of the law. Wakulich v. Mraz, 203 Ill. 2d 223, 230 (2003), citing Hoffman v. Lehnhausen, 48 Ill. 2d 323, 329 (1971). I write separately today because I believe that good cause exists, in addition to that identified by the majority, which compels this court to revisit the issue presented in this case.
In People v. Klingenberg, 172 Ill. 2d 270 (1996), we examined whether the defendant’s acquittal of theft over $300 was legally inconsistent with his conviction of official misconduct. Klingenberg, 172 Ill. 2d at 274. As a first step in resolving that issue, it is apparent that this court determined whether the charge of theft over $300 was a lesser-included offense of official misconduct. The opinion examined the crimes as defined by statute (Klingenberg, 172 Ill. 2d at 275), as charged in the indictment (Klingenberg, 172 Ill. 2d at 276), and also as argued by the State at trial and set forth in the jury instructions (Klingenberg, 172 Ill. 2d at 276) to ascertain whether theft over $300 was included within official misconduct. Ultimately, we held that the trial court’s reconciliation of the verdicts, including its finding that theft over $300 was not a lesser-included offense to official misconduct, was “belied by the record” and the charging instrument. Klingenberg, 172 Ill. 2d at 275-76.
Importantly, I observe that the lesser-included offense analysis we applied was inconsistent with our case law present at that time. Specifically, two years before we decided Klingenberg, we expressed our preference for the charging instrument approach to determine whether a particular offense is a lesser-included offense of another. People v. Novak, 163 Ill. 2d 93 (1994). Novak did not “first adopt” or create the charging instrument approach (People v. Hamilton, 179 Ill. 2d 319, 326-27 (1997)), but rather created uniformity by implicitly rejecting other methods employed at the time. Before Novak, trial courts applied one of several methods to examine whether charged offenses were comprised of lesser-included offenses. In most instances, trial courts compared the abstract statutory definitions of the crimes, otherwise called the “abstract elements” approach, or examined the facts adduced at trial, otherwise called the “inherent relationship” approach. People v. Bryant, 113 Ill. 2d 497, 503 (1986); People v. Mays, 91 Ill. 2d 251, 255 (1982). However, in Klingenberg, despite our holding in Novak, this court clearly applied an unusual combination of approaches to examine the lesser-included issue.
This combined approach demonstrates a confusion that was not limited to this court. In Novak, this court’s stated preference for the charging instrument approach fundamentally altered the method followed by both trial and appellate courts to determine the existence of lesser-included offenses. However, because we did not expressly rule that courts were required to follow the charging instrument approach, courts were slow to correctly apply the charging instrument approach. See, e.g., Hamilton, 179 Ill. 2d at 323. As a result, the full impact of the charging instrument approach was unknown at the time this court decided Klingenberg.
Today, we better understand the impact. The charging instrument approach is a flexible approach that permits courts to recognize the existence of a lesser-included offense even if the charging instrument does not expressly allege all of the elements of the lesser crime, but only implies the elements. Novak, 163 Ill. 2d at 107; Hamilton, 179 Ill. 2d at 325. Put another way, the lesser crime need only relate to the greater to the extent that the charging instrument describes the lesser. Novak, 163 Ill. 2d at 107. This is a significant departure from the earlier essential elements approach. Under the essential elements approach, trial courts only examined the language of the statute. Therefore, absent a change in the language of the statute it was theoretically possible to identify in finite terms the total number of existing lesser-included offenses included within the criminal code. Conversely, the charging instrument approach removes any limitation on the potential number of lesser-included offenses. Illinois jurisprudence, in the years following Klingenberg, illustrates that the charging instrument approach has opened the door to the possibility of a greater number of lesser-included offenses. Under the charging instrument approach, depending upon the language in the charging instrument, theft may be a lesser-included offense of residential burglary (People v. Hamilton, 179 Ill. 2d 319 (1997); People v. Monroe, 294 Ill. App. 3d 697 (1998)), unlawful restraint may be a lesser-included offense of home invasion (People v. Baldwin, 199 Ill. 2d at 10-11), and arson may be a lesser-included offense of burglary (People v. Oparah, 318 Ill. App. 3d 886 (2001)). Under the essential elements approach, theft, unlawful restraint, and arson are not, and would never be, lesser-included offenses of residential burglary, home invasion, and burglary, respectively. We recently recognized the wide breadth of possible lesser-included offenses as a result of the charging instrument approach in People v. Baldwin, 199 Ill. 2d 1 (2002). In Baldwin, we held that the facts alleged in the charging instrument did not set forth sufficient facts to support the allegation that aggravated unlawful restraint was a lesser-included offense of home invasion. Baldwin, 199 Ill. 2d at 10-11. However, we also stated:
“That is not to say that these crimes [aggravated unlawful restraint, aggravated kidnapping, armed robbery, aggravated criminal sexual assault, or aggravated criminal sexual abuse] could never constitute lesser-included offenses of home invasion. To the contrary, they could, depending on the context of the allegations contained in the charging instrument.” Baldwin, 199 Ill. 2d at 10-11. This change in how courts evaluate the existence of
lesser-included offenses is important to the issue we discuss today — the issue of legally inconsistent verdicts. Specifically, any discussion of legal inconsistencies also involves a discussion of lesser-included offenses, and therefore, it is important to recognize the impact of the charging instrument approach. Legally inconsistent verdicts necessarily involve a lesser-included offense because legally inconsistent verdicts by definition involve acquittal on the predicate offense and conviction on the compound offense. People v. Frias, 99 Ill. 2d 193 (1983). In order to ascertain the existence of a predicate and compound offense, courts must evaluate the existence of a lesser-included offense using the appropriate lesser-included analysis. Therefore, a finding of a lesser-included offense may be the first step to discussing the issue of legally inconsistent verdicts. See Frias, 99 Ill. 2d at 198. Accordingly, because the charging instrument approach opened the door to the possibility of a greater number of lesser-included offenses, it also opened the door to a greater number of verdict challenges based upon a purported legal inconsistency.
It was imperative for this court to consider this impact at the time we decided Klingenberg. This is true because when we decided Klingenberg, and declined to follow United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984), our decision was based in large part upon our examination of verdicts and the manner in which legal inconsistencies develop. As noted, lesser-included offenses are an inherent part of legal inconsistencies; therefore, our examination of the issue was based upon incomplete information. The insight we now have, due in part to time, compels that we revisit Klingenberg.
Additionally, I believe our current awareness that the charging instrument approach has opened the door to a greater number of lesser-included offenses, and consequently opened the door to a greater number of verdict challenges based upon a purported legal inconsistency, compels us to reverse our position in Klingenberg and follow United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984). It is more likely true that these purported legal inconsistencies are correlated to the change in how we analyze lesser-included offenses, rather than a reflection of juror confusion or arbitrariness.